Thomas H. Nelson and Donna J. Zullo Nelson - Page 6

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          instrument does not designate such payment as a payment that is             
          not includable in the payee's gross income under section 71 and             
          is not allowable as a deduction to the payor under section 215;             
          (3) if the individual and the spouse are legally separated, they            
          are not members of the same household; and (4) the payor has no             
          liability to make any such payment for any period after the death           
          of the payee.  Secs. 71(b), 215(b).                                         
               Relying upon the above definition and the language of the              
          divorce decree, petitioners argue that the payments petitioner              
          made to Mary Kay Nelson during the years in issue constitute                
          alimony within the meaning of section 215 and are therefore                 
          deductible as claimed on their Federal income tax returns.                  
               Respondent agrees with petitioners that as far as the                  
          literal language of the divorce decree provides, the payments               
          satisfy the definition of alimony for Federal income tax                    
          purposes.  However, according to respondent, the actions of the             
          divorce court and appellate court supersede the language of the             
          divorce decree.  Therefore, according to respondent, and at least           
          with respect to the years in issue, if not before, payments made            
          pursuant to the relevant alimony portion of the divorce decree              
          are not deductible.  Respondent's argument is grounded upon the             
          principle that the division of marital property does not give               
          rise to an alimony deduction on the part of the payor spouse, a             
          proposition of law not disputed by petitioners.  See sec. 1041.             

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